Kelen v. Brewer

• Decision Date: 28 March 1929
• Docket Number: 6 Div. 67.
• Citation: 220 Ala. 175,124 So. 247
• Parties: KELEN v. BREWER.
• Court: Alabama Supreme Court

124 So. 247

220 Ala. 175

KELEN v. BREWER.

6 Div. 67.

Supreme Court of Alabama

March 28, 1929

Rehearing Denied June 13, 1929.

Further Rehearing Denied Oct. 31, 1929.

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill in equity by Alex L. Brewer, guardian of Lula Turner, a non compos mentis, against Earlie B. Kelen, individually and as administratrix of the estate of Anthony Turner, deceased, and John Turner, with a cross-bill by John Turner. From the decree, defendant Earlie B. Kelen, individually and as administratrix, appeals. Affirmed.

Rudulph & Smith, of Birmingham, for appellant.

Walter H. Anderson and Edgar Allen, both of Birmingham, for appellee.

SAYRE J.

The bill in this cause was filed by appellee, representing himself to be the guardian for Lula Turner, a person of unsound mind, and seeking relief of several kinds for the ward. There was a demurrer to the bill, upon which as yet there does not appear to have been any decree. It may be that section 5707 of the Code-new to the present Code and therefore not controlled by the Code of 1886, construed in West v. West, 90 Ala. 458, 7 So. 830-means that the bill in the present case was properly exhibited, though there is no formal averment as to the party or parties complainant. The bill, however, repeatedly speaks of the ward as party complainant. In the circumstances, we think further discussion of this objection to the bill may be deferred until such time as the trial court may have passed upon the demurrer.

Upon the prayer of appellee, embraced in the original bill duly verified, the court entered a decree removing the administration of the estate of Anthony Turner, deceased from the probate into the chancery court. The bill alleged special equities which could be determined in the chancery court alone, viz. (for one thing): The equity to have the probate of the alleged will of Anthony Turner, deceased, set aside upon the ground that it was in fact a forgery and had been imposed upon the probate court by fraud. The evidence taken upon the motion to remove the appellant Kelen as administratrix of the estate fully sustained the averments of the bill, and there was no error in the order removing the administration into the chancery court-this, because of the averments of the petition for removal which, of themselves made a case for equitable intervention in the administration on the averment of a cause of removal which could be tried in the chancery court only. McCraw v. Cooper (Ala. Sup.) 118 So. 337. The decree ordering a removal of the administration having been properly made and nothing affecting it having intervened, the motion to vacate the decree was overruled without error.

Appellant was properly removed from her office as administratrix of the estate of Anthony Turner, deceased. The evidence on the hearing of the motion to remove was taken in the presence of the court. It disclosed the fact-without dispute, indeed-that the alleged will of the deceased, purporting to devise and bequeath the entire estate of deceased to the appellant, was a forgery, concocted by her and executed under her advice and direction after the death of the alleged testator, and imposed upon the probate court by means of a conspiracy to defraud appellee's ward and another of their heritable interest in the estate of deceased, constituting a case of fraud in the management of the proceeding in that court; to employ the language of the decisions, a fraud in the concoction of the decree admitting the will...